George Will: Supreme Court can again rescue freedom in campaign cash case

Tuesday

Oct 8, 2013 at 2:19 AMOct 8, 2013 at 2:19 AM

The Supreme Court must feel as though it is plowing an ocean as it repeatedly reminds Congress that the anodyne label “campaign finance reform” can encompass a multitude of sins.

Today, the court will have another occasion to consider that not all regulations of the indispensable means of disseminating political speech — money — are constitutional just because they are presented as means of preventing corruption or its “appearance.”

By siding with Shaun McCutcheon, a conservative Alabama entrepreneur, the court can continue rescuing the freedoms of political speech and association from abridgements written by, and for, the political class.

At issue are the aggregate limits on individuals’ political contributions.

McCutcheon is not attacking the “base limits” that restrict individuals to giving $2,600 per election to any candidate’s campaign. He’s contesting the $48,600 limit on the aggregate amount individuals can contribute to candidates over a two-year span.

The illogic of aggregate limits is glaring: He could give $2,600 to 18 candidates without an appearance of corruption, but $2,600 to the 19th would somehow trigger the appearance.

Congress, not content with having decided — no one knows how — how much is too much, has decided how many are too many.

Democratic politics is a promise- making, transactional business: Vote for me, support me, and, if elected, I will do some things for you. The court has held that an elected official’s gratitude is not corruption.

But when the court allows the political class to restrict political activity because of the appearance of corruption, it allows that class to write restrictions based not on actual quid pro quo corruption — which already is illegal — but on mere conjecture.

Worse, it allows proponents of campaign restrictions to concoct the appearance of corruption merely by alleging it.

Two salient facts about all campaign finance regulations should be, individually, sufficient to trigger such scrutiny.

First, all such laws implicate core First Amendment values by limiting the expressive activity of individuals associating with, communicating support for and enabling the speech of candidates they support.

Second, all laws regulating the competition for elective offices are written by occupants of such offices, people who have a permanent and powerful temptation to shape the political process to favor incumbents.

The court has been permissive — too much so — in allowing incumbents to decree the extent to which an individual can support an individual candidate. There is no remaining reason to permit incumbents to stipulate how many candidates can receive contributions of a size that Congress itself has deemed innocuous. So, deference to that congressional judgment now requires repudiating Congress’s imposition of aggregate limits.

The aggregate limits do look like the kind of corruption called self-dealing. They may not be, but they certainly have the appearance.